SURINDER SINGH @ RAJA Vs. STATE

JUDGEMENT

(1.) BY these appeals the Appellants challenge the common impugned judgment dated 25th January, 2010 whereby they have been convicted for offence under Section 376 (g) IPC and the order on sentence dated 30th January, 2010 directing them to undergo rigorous imprisonment for a period of 8 years each for offence punishable under Section 376(g) IPC and fine of Rs. 3000/ - each and in default of payment of fine to undergo Simple Imprisonment of 3 months each.

(2.) LEARNED counsel for the Appellant Dharambir @ Bunty contends that despite the prosecutrix not knowing the Appellants she has named them in the FIR. It is highly unnatural that without knowing the Appellants the prosecutrix accompanied them for 3 hours and then went to the place of alleged incident. The MLC of the prosecutrix does not support her version. Prosecutrix has stated that she was administered liquor, however the MLC is silent about her being intoxicated. The MLC shows that the prosecutrix was habitual of intercourse, though in her statement she stated that she had no intercourse prior to the alleged incident. Neither the medical evidence in the MLC nor the report of the FSL support the allegation of the prosecutrix that rape took place. The condoms recovered from the spot had no blood stains. The Test Identification Parade of the Appellants ought to have been conducted as they were not known to the prosecutrix prior to the alleged incident. Statement of the friend of the prosecutrix and the landlord in whose house the prosecutrix was staying has not been recorded and hence material witnesses have not been produced by the prosecution. Though the prosecutrix states that she was called for an interview for job, however she was not carrying her certificates. It is the admitted case of the prosecution that being Sunday number of offices were closed at the alleged place of occurrence and hence it was not possible that the guard would have permitted entry to the accused persons or the prosecutrix. The testimony of the prosecutrix is full of improvements and contradictions. The prosecutrix herself in her cross -examination admits that she did not use any force against the Appellants at the time of sexual intercourse which clearly shows that she was a consenting party. Hence the appeals be allowed and the Appellants be acquitted.

(3.) LEARNED counsel for the Appellants Manoj, Prem and Kapil while adopting the arguments made on behalf of the Appellants Dharambir and Surinder Singh have further contended that the circumstances proved by the prosecution clearly indicate that the prosecutrix was a consenting party. The finding of the learned Trial Court that a women cannot have committed sexual intercourse with 6 men is based on assumptions. The scratch marks on the body of the Appellants were marks of passion and not protest. The prosecutrix admitted that she did not use force against the Appellants. The judgment of the Trial Court is not based on facts but on moral grounds. Reliance is placed on Raju and Ors. Vs. State of M.P. (2008) 15 SCC 133.